Is it reference-writing season where you are? Before putting pen to paper consider a couple of prime physician reference cases. New out of the blocks is Chi v. Loyola University Medical Center, N.D. Ill., 2/16/11, available here. An oncology resident brought an action against his Chicago residency training hospital and professor. After completing the residency program notwithstanding a period of academic probation (subsequently remediated) the resident was offered a job in Arizona. The professor filled out forms provided by the new employer. The professor filled out the first form noting "sufficient ability to practice competently and independently in his specialty" but disclosed the probation and noted some "difficulties in interpersonal communication." The professor answered the second form by cross-referencing the first and checked a box next to the phrase "I cannot recommend him/her."

Dealing swiftly with the plaintiff's claims the court held that as a matter of law the defendants' conduct could not be considered extreme or outrageous (Intentional Infliction of Emotional Distress) and that there was no general duty of fair treatment (argued under a Negligent Infliction of Emotional Distress theory). The court also dismissed the plaintiff's claims of tortious interference and defamation.

Chi is an interesting counterpoint to the better known Kadlec v. Lakeview Anesthesia Center, available here. Kadlec is altogether more serious fare. An anesthesiologist at the defendant practice group was suspected of on-duty use of narcotics. Eventually he was terminated. He later found work at the plaintiff hospital. There he became addicted to Demerol and allegedly was responsible for a tubal ligation patient ending up in a permanent vegetative state. After settling that case the hospital and its insurer brought suit against the practice group, the doctor's prior employer, alleging negligent misrepresentation regarding requested references. The Fifth Circuit, applying Louisiana law, found that there could be liability for letters that were affirmatively misleading but that the defendants had no affirmative duty to disclose (referencing a form letter that was sent to the hospital by the Practice Group that confirmed the doctor's prior privileges but said no more).

I agree with Sallie Sanford's argument that Kadlec notwithstanding "a requirement of greater candor is likely to be adopted either in a subsequent case, by statute, or through hospital accreditation standards." See Candor After Kadlec: Why, Despite the Fifth Circuit's Decision, Hospitals Should Anticipate an Expanded Obligation to Disclose Risky Physician Behavior, 1 Drexel L. Rev. 383 (2009), available here. So let's not forget why we have that Nation Practitioner Data Bank, here, and caveat referrer! [NPT]